What we really need in a forfeiture reform bill- part 1B: Appointment of counsel for indigent claimants

(c) 2014 Brenda Grantland
Truth and Justice Blog, 11/11/2014

Appointment of counsel for indigent claimants, part 1B

Yesterday I blogged about the CAFRA provisions which either authorize or require appointment of counsel for civil forfeiture claimants who are indigent, in two very narrow categories of cases, and how they are not being implemented.

Before I go on to part 2 of my list of demands for effective forfeiture reform, I wanted to show you how far short of CAFRA’s goals for providing court appointed counsel — to at least some categories of indigent forfeiture claimants — the actual practices of the courts currently are.

Congress clearly thought the appointment of counsel was very important. This is what the Committee Report of the Committee for the Judiciary said about bill H.R. 1658:

2. APPOINTMENT OF COUNSEL

There is no Sixth Amendment right to appointed counsel for indigents in civil forfeiture cases, since imprisonment is not threatened. This is undoubtedly one of the primary reasons why so many civil seizures are not challenged. As the cochairs of the National Association of Criminal Defense Lawyers’ Forfeiture Abuse Task Force stated before this Committee in 1996: ‘‘The reason they are so rarely challenged has nothing to do with the owner’s guilt, and everything to do with the arduous path one must journey against a presumption of guilt, often without the benefit of counsel, and perhaps without any money left after the seizure with which to fight the battle.’’ This Committee believes that civil forfeiture proceedings are so punitive in nature that appointed counsel should be made available for those who are indigent, or made indigent by a seizure, in appropriate circumstances. H.R. 1658 provides that a federal court may appoint counsel to represent an individual filing a claim in a civil forfeiture proceeding who is financially unable to obtain representation. In determining whether to appoint counsel, the court shall take into account the claimant’s standing to contest the forfeiture and whether the claim appears to be made in good faith or to be frivolous. Compensation for appointed counsel will be equivalent to that provided for court-appointed counsel in federal felony cases. Currently, maximum compensation would not exceed $3,500 per attorney for representation before a U.S. district court and $2,500 per attorney for representation before an appellate court. These maximums can be waived in cases of “extended or complex” representation where “excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.”

[CLICK THE TITLE TO READ ENTIRE ARTICLE]

Rept. H.R. 106-192, Civil Forfeiture Reform Act, 106th Congress 1st Session, to accompany HR 1658 (June 18, 1999). The committee reported favorably on the bill with amendments and with amendments and recommended that the bill as amended be passed.

That bill, as amended in the committee, provided that:

  • “…if the person filing a claim is financially unable to obtain representation by counsel, the court may appoint counsel to represent that person with respect to the claim.”
  • “…in determining whether to appoint counsel to represent the person filing the claim, the court shall take into account such factors as the claimant’s standing to contest the forfeiture and whether the claim appears to be made in good faith or to be frivolous.”
  • “…the court shall set the compensation for that representation, which shall be equivalent to that provided for court-appointed representation under [the Criminal Justice Act] (for federal criminal defendants), and to pay such cost there are authorized to be appropriated such sums as are necessary as an addition to the funds otherwise appropriated for the appointment of counsel under that section.”

Committee Report p. 23.

Originally the bill that passed in the House of Representatives by a vote of 375 to 48 applied to all indigent forfeiture claimants:

(4)(A) If the person filing a claim is financially unable to obtain representation by counsel, the court may appoint counsel to represent that person with respect to the claim.
(B) In determining whether to appoint counsel to represent the person filing the claim, the court shall take into account such factors as—
(i) the claimant’s standing to contest the forfeiture; and
(ii) whether the claim appears to be made in good faith or to be frivolous.
(C) The court shall set the compensation for that representation, which shall be equivalent to that provided for court-appointed representation under section 3006A of this title [the Criminal Justice Act rates for court appointed criminal attorneys], and to pay such cost there are authorized to be appropriated such sums as are necessary as an addition to the funds otherwise appropriated for the appointment of counsel under such section.

When the bill got to the Senate, Senator Orrin Hatch insisted on a compromise that appeased the DOJ, which included adding a laundry list of new forfeiture triggering offenses. Worst of all the Senate compromise rewrote CAFRA to create exceptions and complex limitations on most of the important reforms that would have protected forfeiture litigants.

We knew that we had been given a lot less than what we wanted, but Congress was still optimistic that these reforms would fix the problems that allowed forfeiture laws to be abused.

The right to counsel provisions were one of the most important reforms FEAR lobbied for.

The Senate compromise on CAFRA watered down the provisions from a right to court appointed counsel for all indigent forfeiture victims to the authority to appoint court counsel in only two categories:

  • 18 U.S.C. § 983(b)(1) allowed but did not require the judge to appoint counsel for claimants who have court-appointed counsel in their parallel criminal case.
  • 18 U.S.C. § 983(b)(2) required the judge to appoint counsel for claimants whose primary residence is seized if they are “financially unable to obtain representation by counsel” – upon request by the claimant.

Even still, Congress believed these provisions, as rewritten, would be enforced, and that the enforcement of those provisions would make a difference.

Statements of Congress regarding court-appointed counsel under CAFRA

In his speech recorded in the Congressional Record for 4-11-2000 (the day CAFRA passed), beginning at p. H2046, CAFRA’s sponsor, Rep. Henry Hyde, stated:

Mr. HYDE. Mr. Speaker, this bill represents the culmination of a 7-year effort to reform our Nation’s civil asset forfeiture laws. …

Let me briefly outline the main points of H.R. 1658 as passed by the Senate. The bill makes eight fundamental reforms: …

… (4) The bill provides that property owners who substantially prevail in court proceedings challenging the seizure of their property will receive reasonable attorney’s fees. In addition, the bill allows a court to provide counsel for indigents if they are represented by appointed counsel in related criminal cases. Currently, property owners who successfully challenge the seizure of their property almost never are awarded attorney’s fees. In addition, indigents have no right to appointed counsel in civil forfeiture cases….

More about Rep. Hyde’s belief that prevailing claimants would receive reimbursement of their attorneys fees in a later blog.

Ms. Jackson-Lee of Texas expressed the urgency of forfeiture reforms that would provide counsel for forfeiture claimants:

Ms. JACKSON-LEE of Texas. Mr. Speaker, this legislation has been long in coming. I know on behalf of the gentleman from Michigan (Mr. Conyers), we want to thank the gentleman from Illinois (Mr. Hyde) because this is legislation that the gentleman from Illinois has worked on extensively and without rest. The gentleman from Illinois has worked in a bipartisan manner. He has those of us who have had disagreements sometimes rally around this legislation because in every single one of our districts we found someone’s mother, someone’s wife, someone’s sister, some innocent person who has been law abiding but because we are part of a great family, have found some family member outside of the law who has brought down the heavy hand of the law on hardworking people who have retained, if you will, or worked hard for the properties that they have. …

The property owner may exhaust his or her financial assets in attorney’s fees to fight for the return of property. If the financial burden of attorney’s fees is not rushing enough, the owner has to post a bond worth 10 percent of the value of the property, before contesting the forfeiture. Independent owners are not entitled to legal counsel. Interestingly enough, persons charged in criminal cases are entitled to a hearing in court and the assistance of counsel. The government need not charge a property owner with a crime when seizing property under civil laws. The result is that an innocent person, or a person not charged with a crime, has fewer rights than the accused criminal. This anomaly must end. …

Page H. 2051.

Clearly Congress passed this bill thinking the right to counsel provisions would be implemented. The most telling evidence is the Congressional Budget Office’s estimate of the costs of the legislation and their statements indicating those funds would be appropriated.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

H.R. 1658–Civil Asset Forfeiture Reform Act of 2000
Summary: H.R. 1658 would make many changes to federal asset forfeiture laws that would affect the processing of about 60,000 civil seizures conducted each year by the Department of justice (DOJ) and the Department of the Treasury. (The Treasury Department makes an additional 50,000 seizures annually that would not be affected by this act.) Assuming appropriation of the necessary amounts, CBO estimates that implementing H.R. 1658 would cost $9 million over the 2001-2005 period to pay for additional costs of court-appointed counsel that would be authorized by this legislation. In addition, enacting the legislation would affect direct spending and receipts; therefore, pay-as-you-go procedures would apply.

Because CBO expects that enacting H.R. 1658 would result in fewer civil seizures by DOJ and the Treasury Department, we estimate that governmental receipts (i.e., revenues) deposited into the Assets Forfeiture Fund and the Treasury Forfeiture Fund would decrease by about $115 million each year beginning in fiscal year 2001. Under current law, both forfeiture funds are authorized to collect revenue and spend the balance without further appropriation. Thus, the corresponding direct spending from the two funds would also decline, but with some lag. CBO estimates that enacting this provision would decrease projected surpluses by a total of $46 million over the fiscal years 2001 and 2002 (the difference between lower revenues and lower direct spending over those years), but that by fiscal year 2003 the changes in receipts and spending would be equal, resulting in no net budgetary impact thereafter.

H.R. 1658 also would require the Legal Services Corporation (LSC) to represent certain claimants in civil forfeiture cases and would require the federal government to reimburse the LSC for its costs. CBO estimates that this provision would increase direct spending by $5 million over the 2001-2005 period….

H.R. 1658 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA), but CBO expects that enacting this legislation would lead to a reduction in payments to state and local governments from the Assets Forfeiture Fund and the Treasury Forfeiture Fund….

Estimated cost to the Federal Government: As shown in the following table, CBO estimates that implementing H.R. 1658 would increase discretionary spending for court-appointed counsel by $9 million over the 2001-2005 period, assuming appropriation of the necessary funds. (For the purposes of this estimate. CBO assumes that spending for this purpose would be funded with appropriated amounts from the Defender Services account.) In addition, we estimate that over the 2001-2005 period, the reductions in direct spending of funds from forfeited assets would be smaller than the reductions in revenues estimated to occur as a result of enacting H.R. 1658, resulting in a net cost of $46 over the five-year period. Finally, CBO estimates that additional payments to the Legal Services Corporation would be about $1 million each year. The costs of this legislation fall within budget function 750 (administration of justice).

Basis of estimate: For purposes of this estimate, CBO assumes that H.R. 1658 will be enacted by the end of fiscal year 2000 and that the necessary amounts will be appropriated for each fiscal year. We also assume that outlays for defender services and the use of forfeiture receipts will continue to follow historical patterns.

[Page: H2048]

Spending subject to appropriation

H.R. 1658 would allow for court-appointed counsel for certain parties contesting a forfeiture who already have been appointed counsel in a related criminal case. The act also would eliminate the requirement that claimants post bond before the case is tried in federal court. Consequently, CBO anticipates that enacting H.R. 1658 would make it easier for people whose assets have been seized to challenge the forfeiture of such assets. Based on information from DOJ, we estimate that the percentage of seizures that would result in contested civil cases would increase from 5 percent annually to at least 20 percent in fiscal year 2001. As the defense bar becomes increasingly aware of and more familiar with the provisions of H.R. 1658, CBO expects that the percentage of contested civil cases would increase to about 30 percent each year.

While the decision to appoint counsel would be at the discretion of the judge assigned to each case, CBO expects that judges would not want to encourage litigation in many cases. Moreover, CBO expects that many of the contested cases would involve larger assets, and such cases usually do not involve indigent claimants who would need court-appointed counsel. Based on information from DOJ, CBO estimates that a small number of indigent claimants in civil forfeiture cases would also have a criminal case pending. Specifically, we estimate that court-appointed counsel would be provided in about 5 percent of contested civil cases. In addition, because forfeiture cases involve property, the courts might have to appoint more than one attorney to represent multiple claimants in the same case. Historical data suggest an average of 1.5 claims per case.

While H.R. 1658 does not specify a level of compensation paid to court-appointed counsel for a civil forfeiture case, CBO expects such payment would be equivalent to amounts paid in criminal cases. Based on information from the Administrative Office of the United States Courts, CBO estimates that court-appointed counsel would be paid about $3,000 per claimant per case. In total, we estimate that additional defender services related to civil asset forfeiture proceedings would cost about $9 million over the next five years.

In addition, other discretionary spending could be affected by this act. On the one hand, the federal court system could require additional resources in the future if additional cases are brought to trial and the amount of time spent on each case increases. On the other hand, some savings in law enforcement resources could be realized if fewer seizures and conducted each year. While CBO cannot predict the amount of any such costs or savings, we expect that, on balance, implementing the act would result in no significant additional discretionary spending other than the increases for court-appointed counsel.

Revenues and direct spending

Based on information from DOJ and the Treasury Department, CBO estimates that about 23,000 seizures that would otherwise occur each year under current law would be eliminated under H.R. 1658. (Such seizures primarily involve assets whose value is less than $25,000.) The various changes to civil forfeiture laws under this act would make proving cases more difficult and more time-consuming for the federal government. In many instances, law enforcement agencies, including the state and local agencies that work on investigations jointly with the federal government and then receive a portion of the receipts generated from the forfeitures, many determine that certain cases, especially those with a value less than $25,000, may no longer be cost-effective to pursue. While the federal government and other law enforcement agencies would take a few years following enactment of the legislation to realize the full effects of its provisions on the forfeiture and claims process, CBO expects that the total number of seizures would decrease by nearly 40 percent. CBO estimates that such a reduction in seizures would reduce total forfeiture receipts by about $115 million in fiscal year 2001 and by $575 million over the 2001-2005 period.

The receipts deposited into the Assets Forfeiture Fund and the Treasury Forfeiture fund are used to pay for all costs associated with the operation of the forfeiture program, the payment of equitable shares of proceeds to foreign, state, and local law enforcement agencies, and other expenses not directly associated with a forfeiture case, such as payment of awards to informants. In recent years about 67 percent of total asset forfeiture receipts collected in a given year are spent in the same year in which they are collected; therefore, we estimate that enacting H.R. 1658 would result in a decrease in federal spending of $76 million in fiscal year 2001, $108 million in 2001, and $115 million annually in subsequent years.

In addition, H.R. 1658 would require the Legal Service Corporation to represent claimants in financial need and whose claim involves an asset that is the claimant’s primary residence. Under H.R. 1658, the court must enter a judgment in favor of the LSC for the cost of legal representation. Based on historical data, CBO estimates that such judgments would increase direct spending by about $1 million a year.

Congress clearly believed and intended that the expenditures to provide counsel for forfeiture victims would cost a million dollars or more a year to implement, and that CAFRA’s reforms would curb law enforcement’s and prosecutors’ offices’ seizure zeal, reducing the government’s annual haul from forfeiture revenue substantially.

But did that actually happen? In tomorrow’s blog – how much actually was spent implementing the court-appointed counsel provisions in the past 14 years?


For further inquiry into the Congressional history of this bill see my post CAFRA’s Legislative history, posted on the FEAR website April 27, 2000.

Brenda Grantland

Brenda Grantland is a lawyer in Mill Valley, CA, who handles primarily asset forfeiture defense, crime victims’ rights, and federal civil and criminal appeals. She is also the author of several books on asset forfeiture and other subjects.

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